Remmers v. Brotherhood of Maintenance of Way Employees Division Unified System Division of the International Brotherhood of Teamsters
Filing
26
MEMORANDUM AND ORDER granting 11 Defendant Union Pacific's Motion to Dismiss for Failure to State a Claim; granting 13 Defendant Brotherhood's Motion to Dismiss. Signed by District Judge Julie A. Robinson on 6/27/2012. (pp)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN R. REMMERS,
)
)
Plaintiff,
)
)
v.
)
)
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYEES DIVISION
)
UNIFIED SYSTEM DIVISION OF THE )
INTERNATIONAL BROTHERHOOD )
OF TEAMSTERS, and
)
UNION PACIFIC CORPORATION
)
d/b/a UNION PACIFIC RAILROAD,
)
)
Defendants.
)
____________________________________)
Case No. 11-4142-JAR
MEMORANDUM AND ORDER
This matter comes before the Court on the motions to dismiss filed by Defendant
Brotherhood of Maintenance of Way Employees Division of the Unified System Division of
International Brotherhood of Teamsters (“Brotherhood”) (Doc. 13) and Defendant Union Pacific
Corporation d/b/a Union Pacific Railroad (“Union Pacific”) (Doc. 11). This is an action brought
under § 301 of the Labor Management Relations Act of 1974 (“LMRA”) against Defendant
Brotherhood for breaching its duty of fair representation owed to Plaintiff as a member of the
union, and against Defendant Union Pacific, Plaintiff’s former employer, for breach of the
collective bargaining agreement (“CBA”) and wrongful constructive discharge.
For a number of reasons, the Court dismisses this case. The Court has no personal
jurisdiction of Defendant Brotherhood because of insufficient service of process. And, the Court
has no subject matter jurisdiction. First, the LMRA is preempted by another specific federal
1
statute, the Railway Labor Act (“RLA”) which governs collective bargaining agreements of
railroad employees. Second, under the RLA, the Court lacks subject matter jurisdiction unless
the action falls within one of three narrow exceptions. This action clearly does not fall within
the “repudiation” exception. Nor does this action fall within the “futility exception,” for the
Complaint neither pleads that exception, nor pleads facts supporting that exception. And this
action does not fall within the “hybrid” exception, for the Complaint fails to plead facts showing
that Defendants colluded or conspired to wrongfully discharge or deny the grievance process to
Plaintiff. Indeed, the Complaint pleads facts that show that the Defendants operated
independently, rather than in concert. Because the Court concludes that it has no personal
jurisdiction of the Brotherhood due to insufficient service of process, and no subject matter
jurisdiction of the claims against both Defendants, the Court need not reach Union Pacific’s
alternative ground for dismissal, that the Complaint fails to state a claim for relief for breach of
contract and constructive wrongful discharge.
I.
No Personal Jurisdiction—Insufficient Service of Process
The Court lacks personal jurisdiction over a defendant where there is insufficient service
of process in accordance with Fed. R. Civ. P. 12(b)(5). Service is insufficient where a party
serves the wrong person or serves an individual not permitted to accept service.1 The burden is
on the plaintiff to make a prima facie showing that it satisfied the statutory and due process
demands for the Court to exercise jurisdiction.2 Although the parties may submit affidavits in
support of a motion to dismiss for insufficient service of process, the Court must give the
1
Pope v. Boy Scouts of America, No. 06-2130, 2006 WL 3199423, at *1 (D. Kan. Nov. 3, 2006).
2
Id.
2
plaintiff the benefit of any factual doubt where the facts are contested.3 Following that standard,
the Court finds the following facts relevant to this discussion.
Plaintiff filed this action on October 14, 2011. On February 6, 2012, summons for
service of Defendant Brotherhood was issued. On February 9, 2012, 118 days after the
Complaint was filed, Plaintiff served the Complaint and summons by certified mail addressed to
Defendant Brotherhood at 100 East Sage Street in Lyman, Wyoming, the situs of Brotherhood’s
post office box, not its place of business. The mail was not addressed to an individual. Teena
Bradshaw, an employee of Brotherhood, signed the certificate signifying delivery of the package.
Bradshaw is not an officer, manager, partner, or managing agent of Brotherhood; and she does
not have authority under Brotherhood’s bylaws to accept service of process. In signing for the
mail, Bradshaw made no oral representations to Plaintiff or written representations on the
certificate of delivery that she had authority to accept service of process.
Defendant Brotherhood argues that under Fed. R. Civ. P. 4(h) and (m), service of process
on Brotherhood was insufficient,4 and that Brotherhood has consequently not been served within
the requisite 120 days.5 Service within a judicial district of the Unites States and on a
corporation, partnership or association can be effectuated in one of two ways under Rule 4(h).
One method is delivery of a copy of the summons and complaint to an officer, a managing or
general agent, or an agent authorized by appointment or law to accept service of process.6
3
Id.
4
Fed. R. Civ. P. 4(h).
5
Fed. R. Civ. P. 4(m).
6
Fed. R. Civ. P. 4(h)(1)(B).
3
Plaintiff offers nothing to counter Brotherhood’s assertion that Bradshaw is not an officer,
manager or agent authorized by appointment of law to accept service. Rather, Plaintiff argues
that Bradshaw is a general agent because she is authorized to pick up, open and distribute
incoming mail.
The second method of service on a corporation, partnership or association under Rule
4(h) is to effectuate service under Rule 4(e)(1),7 which in turn allows for service “following state
law for serving a summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made.”8 Plaintiff and Defendant
Brotherhood argue that the Kansas statutes support their respective positions. K.S.A. § 60-303
governs the method of service, and service by certified mail is one appropriate method of
service.9 Plaintiff served the summons and Complaint by certified mail.
But the inquiry does not end there, for K.S.A. § 60-304 governs on whom service must
be made. With respect to corporations, partnerships or associations, service must be made on:
either an officer, manager, partner, resident or managing or general agent;10 the person having
charge of the defendant’s business office where the summons and complaint is served;11 or an
agent authorized by appointment or by law to receive service.12 K.S.A. § 60-304 also requires
that “service by return receipt delivery on an officer, partner or agent must be addressed to the
7
See Fed. R. Civ. P. 4(h)(1)(A).
8
Fed. R. Civ. P. 4(e)(1).
9
K.S.A. § 60-303(c)(1).
10
K.S.A. § 60-304(e)(1).
11
K.S.A. § 60-304(e)(2).
12
K.S.A. § 60-304(e)(3).
4
person at the person’s usual place of business.”
As Defendant Brotherhood posits, Plaintiff’s service failed in several respects. First, the
summons and Complaint were addressed to 100 East Sage Street in Lyman, Wyoming, which
Defendant Brotherhood asserts was the situs of its post office box, not its place of business.
Plaintiff does not refute that this was the location of Brotherhood’s post office box.
Moreover, the summons and Complaint were neither addressed to Bradshaw, nor to any
other individual associated with Defendant Brotherhood. For that reason, service was not in
compliance with K.S.A. § 60-304. In Taylor ex rel. Gibbens v. Medicalodges, Inc.,13 the plaintiff
sent a copy of the summons and complaint to the corporate defendant’s post office box, not its
place of business. Like this case, the mail was addressed to the corporate defendant, not to an
officer, manager, or individual in charge of the defendant’s business office.14 And, like this case,
the person who signed for the mail at the post office, was not an officer or manager, but a
mailroom clerk.15 While acknowledging that the plaintiff had the burden of proving the
mailroom clerk was the defendant’s agent, and acknowledging that there remained a disputed
issue of fact on the point, the court found that because the envelope was addressed to defendant
rather than to an officer, manager or agent at defendant’s place of business, there was no valid
service of process under K.S.A. § 304(e).16 Similarly, in Porter v. Wells Fargo Bank, N.A.,17 the
court found service to be insufficient when plaintiff sent the summons and complaint by certified
13
236 P.3d 573 (table), 2010 WL 3324408 (Kan. Ct. App. Aug. 20, 2010).
14
Id. at *2.
15
Id.
16
Id. at *3.
17
257 P.3d 788 (Kan. Ct. App. 2011).
5
mail to the corporate defendant, not addressed to an individual officer, manager or agent, and to
a post office box, not the defendant’s place of business.18 The court noted that “the person who
is sent to pick up mail at a corporate post office box address is rarely the person in charge of the
business office.”19
Moreover, the Court finds that service was insufficient under the federal rule or state
statute because Plaintiff has failed to show that Bradshaw was a “general agent.” Bradshaw
avers in her affidavit that she was an at-will employee whose job duties included picking up,
opening and distributing the mail to other employees in Defendant Brotherhood’s Lyman,
Wyoming office. Plaintiff asserts that Bradshaw’s authority to pick up, open and distribute mail,
sufficed to make her a general agent. The Court disagrees. Plaintiff argues, citing to cases from
other states, that one with apparent authority is a general agent for purposes of accepting service
of process. But Plaintiff makes no showing that Bradshaw had apparent authority, for Bradshaw
did not represent to Plaintiff orally, or in writing on the return receipt, that she was an agent.
Nor did Bradshaw otherwise claim to have authority.
Both the Kansas Court of Appeals and this Court have held that a general agent is a
person who is an integral part of a business organization who does not require fresh
authorization for each transaction.20 All the Plaintiff has demonstrated here is that Bradshaw had
authority to pick up, open and distribute the mail, not that she was an integral part of the
business, nor that she engaged in business transactions without need for fresh authorization.
18
Id. at 791.
19
Id.
20
Bd. of Jefferson Cnty. Comm’rs v. Adcox, 132 P.3d 1004, 1012–13 (Kan. Ct. App. 2006); Masek Distrib.,
Inc. v. First State Bank & Trust Co.,908 F. Supp. 856, 862 (D. Kan. 1995).
6
Plaintiff has not made the requisite prima facie showing that Bradshaw was a general agent.
Plaintiff argues that even if service of process was insufficient, it was not fatally
defective, for it was in substantial compliance with the rules and statutes, pursuant to K.S.A. §
60-204, which provides that
[s]ubstantial compliance with any method of serving process effects valid service
of process if the court finds that, notwithstanding some irregularity or omission,
the party served was made aware that an action or proceeding was pending in a
specified court that might affect the party or the party’s status or property.”21
Kansas courts have construed “substantial compliance” under K.S.A. § 60-204 the same
way they have construed “substantial compliance” under K.S.A. § 12-105b, the statute that sets
out the requirements for serving notice on defendants in an action brought under the Kansas Tort
Claims Act.22 Thus, “substantial compliance” under K.S.A. § 60-204 means “compliance in
respect to the essential matters necessary to assure every reasonable objective of the statute.”23
While the courts have not parsed this language and defined what every reasonable objective of
the statute is, this Court finds that the core of the statute is to ensure that service of process is
made on an appropriate person in authority, or that person’s authorized agent, in a manner that
will ensure that Plaintiff can ascertain that the appropriate person or agent received service.
Thus, while certified mail is appropriate, the mail must be directed to an authorized person, not
just to the name of the corporate defendant. To better ensure that an authorized person receives
the mail, it should be delivered to the place of business, not a mail drop or post office box. And,
to the extent that an authorized person’s agent receives service, Plaintiff should be able to
21
K.S.A. § 60-204.
22
See Fisher v. DeCarvalho, 260 P.3d 1218, 1225–26 (Kan. Ct. App. 2011).
23
Id. at 1126 (quotation omitted).
7
ascertain and confirm that, through the agent’s oral representations, or the agent’s written
representations on the return receipt.
In Porter,24 the court rejected an argument that service on a corporate defendant by
certified mail, addressed to the defendant at a post office box, constituted substantial compliance.
And, although it involved an individual rather than corporate defendant, the Court finds
instructive the Kansas Court of Appeals’ application of K.S.A. § 60-204 in Fisher.25 There, the
plaintiff’s efforts to serve the individual defendant failed under K.S.A. § 60-303, for plaintiff
failed to first attempt service at the defendant’s residence before attempting service by certified
mail at the defendant’s place of business.26 The plaintiff’s efforts to serve the proper person,
pursuant to K.S.A. § 60-304 also failed, for the plaintiff failed to effectuate service on defendant
or defendant’s authorized agent; and the person who signed for the mail did not express that they
were signing as defendant’s agent or with defendant’s authority.27 Under those facts, the court
held that the plaintiff did not substantially comply with K.S.A. § 60-304 when the plaintiff failed
to satisfy the prerequisites for service at a defendant’s place of business, did not use certified
mail with restricted delivery,28 and did not actually obtain service on the defendant or the
defendant’s authorized agent. The court further held that only when there is substantial
compliance with some statutory method of service of process, will irregularities or omissions be
24
257 P.3d 788, 791 (Kan. Ct. App. 2011).
25
260 P.3d at 1225–26.
26
Id.
27
Id.
28
The requirement that certified mail be delivered by restricted delivery was removed when K.S.A. § 60-304
was amended in 2010.
8
ignored, and then only if the party to be served was made aware that an action or proceeding was
pending.29
The facts in this case are starkly different than those in Sellens v. Telephone Credit
Union,30 a case upon which Plaintiff relies. In Sellens, service on the defendant, a credit union,
was accomplished by hand delivery of the summons and complaint to the defendant’s place of
business.31 The summons and complaint were handed to an employee who worked as a secretary
for the credit union. Unlike here, the papers went to the defendant’s place of business, not to a
post office box. Further, the process server told the secretary he had a summons to serve and he
asked her who could accept the summons. The secretary told the process server that she could
accept the summons;32 unlike here, where Bradshaw took delivery of the mail without any
representation that she was authorized to accept service of a summons and complaint. In Sellens,
Judge Marten reasoned that because the summons and complaint were left with someone who
appeared to have charge of the office, plaintiff had substantially complied with service of
process under Kansas law.33
Here, Plaintiff urges that Defendant Brotherhood was aware of this action, and thus
Plaintiff’s irregularities or omissions should be ignored. But, it is notable that the summons and
complaint were not addressed to an officer, manager or agent nor were they delivered to
Defendant Brotherhood’s place of business. Neither through delivery to the place of business,
29
Fisher, 260 P.3d at 1226–27.
30
189 F.R.D. 461 (D. Kan. 1999).
31
Id. at 463.
32
Id.
33
Id. at 465.
9
nor in specifically addressing it to an authorized individual did this piece of mail appear to be
anything other than any other ordinary piece of certified mail. In short, Plaintiff failed to alert
Defendant Brotherhood to the filing of this action, by addressing the mail to the attention of a
key person, sending the mail to the place of business, where it was more likely an authorized
person would be present, or by ensuring through oral or written representations that the person
who received the mail was authorized to accept service of process. Under these facts, even if
Defendant Brotherhood was aware of the action, that alone does not constitute substantial
compliance.34
Accordingly, the Court cannot conclude that Plaintiff substantially complied with the
Kansas statutes or the federal procedural rules for service of process. Here, service was
attempted on the 118th day after Plaintiff filed his Complaint. Thus, service has not been
properly made on Defendant Brotherhood within the 120 day time limit set forth in Rule 4(m).
Plaintiff has not mentioned any cause, much less good cause for his failure to timely serve
Defendant Brotherhood. Thus, the Court concludes that Defendant Brotherhood should be
dismissed without prejudice, pursuant to Fed. R. Civ. P. 4(m). Notably, as discussed below,
even if the Court had personal jurisdiction of Defendant Brotherhood, the Court lacks subject
matter jurisdiction of this action, and thus dismisses this entire action on that ground.
II.
No Subject Matter Jurisdiction
Defendant Union Pacific moves to dismiss under Rule 12(b)(1) for lack of subject matter
jurisdiction. Federal courts are courts of limited jurisdiction and, as such, must have a statutory
34
See Fisher, 260 P.3d at 1227–28.
10
or Constitutional basis to exercise jurisdiction.35 A court lacking jurisdiction must dismiss the
case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is
lacking.36 The party who seeks to invoke federal jurisdiction bears the burden of establishing
that such jurisdiction is proper.37 Thus, Plaintiff bears the burden of showing why the case
should not be dismissed. Mere conclusory allegations of jurisdiction are not enough.38
Generally, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes
one of two forms: a facial attack or a factual attack. “First, a facial attack on the complaint’s
allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In
reviewing a facial attack on the complaint, a district court must accept the allegations in the
complaint as true.”39 “Second, a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual
attack on subject matter jurisdiction, a district court may not presume the truthfulness of the
complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”40
35
Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see United States v. Hardage, 58 F.3d 569, 574
(10th Cir. 1995) (“Federal courts have limited jurisdiction, and they are not omnipotent. They draw their jurisdiction
from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1.”) (internal
citations omitted).
36
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).
37
Montoya, 296 F.3d at 955.
38
United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.
1999).
39
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citing Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990)) (internal citations omitted).
40
Id. at 1003 (citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325); Davis ex rel. Davis v. United States, 343
F.3d 1282, 1296 (10th Cir. 2003).
11
A.
Facts Alleged in the Complaint
In this case, Defendant Union Pacific makes a facial attack on the complaint, so the Court
accepts the allegations in the complaint as true. Plaintiff began his employment with Union
Pacific in about 1979. On March 25, 2011, Union Pacific directed Plaintiff to participate in a
random drug testing. Sometime before March 30, 2011, while Plaintiff was away from the job
site and while other employees had access to a company vehicle, Union Pacific searched the
vehicle and allegedly found drug paraphernalia. That same day, Union Pacific notified Plaintiff
that he would be out of service until an investigation was completed. On April 1, 2011, the
testing services group reported to Union Pacific that Plaintiff’s drug test results were negative,
indicating the presence of no drugs. Pursuant to company policy and practice, employees who
are randomly selected for drug testing are allowed to return to work upon receipt of negative
results.
But on April 15, 2011, Union Pacific proposed termination of Plaintiff. Plaintiff’s union,
Defendant Brotherhood, was assisting Plaintiff in challenging his placement out of service and
the proposed termination through the established grievance procedure. On April 15, 2011,
Brotherhood’s representative, David Scoville, rather than challenging Union Pacific’s evidence
and rather than fighting for Plaintiff’s continued employment, encouraged Plaintiff to resign to
avoid dismissal. Brotherhood failed to assert Plaintiff’s known positive work history or
otherwise challenge Plaintiff’s removal from his employment without just cause.
The Complaint further asserts that Defendant Brotherhood’s representation of Plaintiff
amounted to nothing more than an arbitrary or perfunctory act. Brotherhood breached its duty of
fair representation. And, Union Pacific’s threatened termination of Plaintiff was the proximate
12
cause of Plaintiff surrendering his employment and as such constitutes a wrongful constructive
discharge.
B.
Jurisdiction preempted by Railway Labor Act
As Defendant Union Pacific notes, although Plaintiff purports to bring this action under
section 301 of the LMRA,41 because Plaintiff is an employee of a railroad, his breach of contract
claim against Defendant Union Pacific should be brought under the RLA.42 The LMRA does not
apply to a claim by a railroad employee;43 for railroad labor relations are governed by the RLA,
and private causes of action by railroad employees are specifically excluded from coverage
under the LMRA.44 Plaintiff concedes this in his response to Union Pacific’s motion to dismiss.
Plaintiff also concedes that his breach of contract action is a “minor dispute” within the
meaning of the RLA,45 such that exclusive jurisdiction is vested with the National Railroad
Adjustment Board and the Court has no subject matter jurisdiction,46 unless this action falls
within an exception to such preemption under the RLA. Under the RLA, there is a mandatory
arbitral mechanism that vests exclusive jurisdiction over major disputes, defined as “the
formation of collective bargaining agreements or efforts to secure them,” and minor disputes,
41
29 U.S.C. § 185(a).
42
45 U.S.C. §§ 151–163.
43
Nicolaisen v. Chicago & Nw. Transp. Co., No. 89-2430, 1991 WL 237619, at *10 (D. Kan. Oct. 30, 1991)
(citing Sheehan v. Union Pac. R.R., 576 F.2d 854, 855 (10th Cir.), rev’d on other grounds, 439 U.S. 89 (1978)).
44
Id.; see also 29 U.S.C. §§ 142(3),152(3).
45
45 U.S.C. §151a.
46
Union Pac. R.R. v. Sheehan, 439 U.S. 89, 94 (1978); Andrews v. Louisville & Nashville R.R., 406 U.S.
320, 321-24 (1972) (holding that railroad employee’s claim for wrongful discharge in violation of collective
bargaining agreement is preempted by RLA); see also Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d 831, 835 (10th Cir.
1996).
13
defined as “disagreements over the meaning of a bargained-for-labor agreement” that “gro[w]
out of grievances or out of the interpretation or application of agreements covering rates of pay,
rules or working conditions.”47 Plaintiff concedes this point as well, inasmuch as Plaintiff argues
that the Court has subject matter jurisdiction because this case falls within an exception to the
preemption rules of the RLA.
There are three exceptions to National Railroad Adjustment Board’s exclusive
jurisdiction of minor disputes between an employee and a railroad: (1) the repudiation
exception—when the employer repudiates the private grievance machinery; (2) the futility
exception—when resort to administrative remedies would be futile; and (3) the hybrid exception
—when the employer is joined in a claim against the union based on the breach of the duty of
fair representation.48 Plaintiff does not argue that the repudiation exception applies; nor does the
Complaint allege such. Plaintiff argues that the futility and hybrid exceptions apply.
1.
Futility exception not pled and not applicable
Plaintiff argues that the Complaint pleads sufficient facts to demonstrate the applicability
of the futility exception, in that paragraph 17 of the Complaint states that the “Union did not
challenge the Railroad’s evidence and fight for the Plaintiff’s continued employment [sic]
encouraged Plaintiff to resign to avoid dismissal,” and paragraph 20 states that the “Union’s
representation amounted to nothing more than an arbitrary or perfunctory act and as such
47
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994) (quoting 45 U.S.C. §151a).
48
Sisco v. Consol. Rail Corp., 732 F.2d 1188, 1190 (3d Cir. 1984) (citing Czosek v. O'Mara, 397 U.S. 25,
29–30 (1970); Glover v. St. Louis-S.F. Ry, 393 U.S. 324, 329–31 (1969); Goclowski v. Penn Cent. Transp. Co., 571
F.2d 747, 758–60 (3d Cir. 1977)).
14
constitutes a breach of its duty of fair representation.” As Defendant Union Pacific points out,
however, the Complaint does not even allege in a conclusory fashion that the grievance
proceedings already instituted would be futile. The Tenth Circuit has held that a bald allegation
of futility, which this Complaint lacks, would be insufficient, as the“futility of the contractual or
administrative remedy must clearly appear beyond mere conclusionary language in a complaint,
for otherwise the doctrine of exhaustion would be dissipated by mere form and the door to the
courts could be opened by prediction rather than by jurisdictional fact.”49
Viewed in the light most favorable to Plaintiff, this Complaint alleges that the union was
representing and assisting Plaintiff, through the “established grievance procedure,” in
challenging his placement out of service despite the negative drug test, and in challenging the
proposed termination. But on April 15, 2011, rather than challenging Union Pacific’s evidence,
asserting Plaintiff’s positive work history, and fighting for Plaintiff’s continued employment, the
union representative encouraged Plaintiff to resign. The Complaint does not allege that
continuing with the established grievance procedure would have been a hollow futility. At best
the Complaint alleges that Plaintiff relied upon the union representative’s bad advice to resign
rather than challenge the employer’s actions. But that does not demonstrate that Plaintiff could
not have proceeded with the grievance procedure. In fact, under the RLA, the employee has the
right to pursue the grievance on their own; they need not rely upon the union to prosecute their
grievance.50 The Complaint has not plead and cannot show that Plaintiff’s prosecuting the
grievance would have been a futile act simply because the union failed to prosecute the
49
Transp. Workers Union of Am., AFL-CIO v. Am. Airlines, Inc., 413 F.2d 746, 751(10th Cir. 1969) (citing
Glover, 393 U.S. at 330–31).
50
See Masy v. N.J. Transit Rail Operations, Inc. 790 F.3d 322, 326 (3d Cir. 1986) (citing 45 U.S.C. § 153).
15
grievance to his satisfaction.51 And, the Complaint has pled no other facts that would indicate
that the administrative process would not have potentially provided the relief Plaintiff sought.
2.
Hybrid exception not applicable
Plaintiff also argues that the hybrid exception to the exclusive jurisdiction of the RLA
applies. This exception applies to so-called hybrid cases in which an employee joins a claim
against the employer railroad with a claim against his union for breach of the union’s duty of fair
representation. But in such a case, the employee must allege that the employer and union
conspired or colluded to bring about the employee’s discharge or to deny the employee access to
the grievance procedure.52
Here, the Complaint does not allege that Defendants Union Pacific and Brotherhood
colluded or conspired to effectuate Plaintiff’s discharge or to deny his access to the grievance
procedures. In fact, the Complaint alleges the contrary, that Defendant Brotherhood assisted
Plaintiff in pursuing the grievance procedures, to challenge both his placement out of service and
the proposed termination. But Plaintiff voluntarily resigned after Defendant Brotherhood
encouraged Plaintiff to resign in lieu of further pursuing the grievance process. The Complaint
further alleges that Defendant Brotherhood breached its duty of fair representation by “not being
fully aware of the details associated with the investigation of the Railroad and failing to
undertake any investigation of the circumstances.” The Complaint does not plead collusion.
Rather, the Complaint pleads that Defendant Brotherhood was ignorant of Defendant Union
51
See Nicolaisen v. Chicago & Nw. Transp. Co., No. 89-2430, 1991 WL 237619, at *11 (D. Kan. Oct. 30,
1991) (finding plaintiff failed to show futility exception under the RLA despite union’s failure to advance her
grievance, because under her collective bargaining agreement she could have prosecuted her grievance herself).
52
Robinson v. Pub. Law Bd. No. 5914, 63 F.Supp. 2d 1266, 1271 (D. Colo. 1999) (citing Sheehan, 439 U.S.
at 93;Richins v. S. Pac. Co., 620 F.2d 761 (1980)) .
16
Pacific’s investigation and took no steps to educate itself or investigate. This, the Complaint
alleges, amounted to no more than an “arbitrary and perfunctory act” of representation by
Defendant Brotherhood. There simply is no allegation that Defendant Brotherhood
communicated with Union Pacific and acted in concert in either failing to investigate or in
encouraging Plaintiff to resign in lieu of termination. Because the Complaint not only does not
allege conspiracy or collusion, but alleges facts that show that the union did not communicate or
consort with the employer, the hybrid exception does not apply.
III.
Conclusion
Because Plaintiff failed to satisfy the service of process requirements in almost every
respect, neither addressing the certified mail to an individual, delivering the certified mail to
Defendant Brotherhood’s place of business, nor delivering the mail to an individual authorized
by law, appointment or agency to accept service, the Court lacks personal jurisdiction of
Defendant Brotherhood. And, because the Complaint fails to plead facts by which this action
could fall within one of the narrow exceptions to the exclusive jurisdiction of the RLA and in
fact pleads facts contrary to such exceptions, the Court has no subject matter jurisdiction of this
action.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Brotherhood’s
Motion to Dismiss (Doc. 13) is granted.
IT IS FURTHER ORDERED that Defendant Union Pacific’s Motion to Dismiss (Doc.
11) is granted.
IT IS SO ORDERED.
Dated: June 27, 2012
S/ Julie A. Robinson
17
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?